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'J' and Department of Health and Ageing [2013] AICmr 21 (8 March 2013)

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Decision and reasons for decision of Acting Australian Information Commissioner, Dr James Popple

Summary of case details
Applicant:

'J'

Respondent: Department of Health and Ageing

Other parties:

Anonymous

Decision date: 8 March 2013
Application number: MR11/00034
Catchwords:

Freedom of information — Request for access to documents — Whether giving access would disclose information that would reasonably be regarded as irrelevant to the request — Whether disclosure would have a substantial adverse effect on the management or assessment of personnel — Whether disclosure of personal information unreasonable — Whether documents conditionally exempt from release — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 22, 47E(c), 47F

 

  Contents

 Summary

  1. I set aside the decision of the Department of Health and Ageing (the Department) of 2 June 2011 and substitute my decision, under ss 11A(5) and 22 of the Freedom of Information Act 1982 (the FOI Act), refusing access to some of the documents sought and granting access to others, some modified by deletions.

 Background

  1. The applicant was an employee of the Department. On 31 July 2009, she made a complaint about the behaviour of her then supervisor (the supervisor). On 24 August 2009, the Department arranged for a solicitor to investigate whether the supervisor had breached the APS Code of Conduct.[1] On 23 March 2010, the solicitor reported to the Department the results of that investigation. On 4 June 2010, the Department found that the supervisor had breached the APS Code of Conduct. On the same day, the Department wrote to the applicant advising her that a breach had been found, and that '[a]ppropriate action has now been taken'.
  2. On 14 December 2010, the applicant sought access under the FOI Act to the following documents:

    2010 report/s from the investigation into [the supervisor], Dept of Health and Ageing, into his Breach of the Code of Conduct, against myself, including any penalties and/or restrictions incurred as a result of this breach.

  3. As part of its processing of the applicant's request, the Department consulted five affected third parties under s 27A of the FOI Act ('Consultation – documents affecting personal privacy'). The supervisor is one of these affected third parties, and the only one who made an exemption contention. He is a party to this IC review.[2]
  4. On 25 February 2011, the Department wrote to the applicant providing its reasons for decision and a schedule of 34 documents that it said fell within the scope of the applicant's request. The Department decided to release to the applicant two documents in full[3] and edited copies of 30 further documents.[4] The Department refused the applicant any access to the remaining two documents.[5] In making its decision, the Department relied upon the personal privacy exemption (s 47F) in relation to some documents, and edited some documents (under s 22) to remove matter it considered irrelevant as it related to a separate complaint (the other complaint) against the supervisor, made by another person.
  5. On 9 March 2011, the applicant sought IC review of that decision under s 54L of the FOI Act. On 21 March 2011, the supervisor applied to the Department for internal review of that same decision under s 54A. The applicant is seeking IC review of the Department's decision as an access refusal decision. The supervisor was seeking internal review of the Department's decision as an access grant decision.[6]
  6. On 2 June 2011, the Department (in response to the supervisor's application for internal review) varied its original decision. In doing so, the Department relied upon the material obtained in confidence exemption (s 45), the certain operations of agency exemption (s 47E), and the personal privacy exemption (s 47F).
  7. The effect of the Department's internal review decision was:
    • to release to the applicant in full a further document that was to have been made available as an edited copy under the original decision[7]
    • to edit differently another of the documents that was to have been made available as an edited copy,[8] and
    • to refuse the applicant any access to nine of the documents – seven of which were to have been made available as edited copies.[9]
  8. The Department identified 34 documents that it said fell within the scope of the applicant's request. Three of those have been provided to the applicant.[10] This IC review is concerned with the remaining 31 documents.[11] (A schedule of those 31 documents, numbered as they were in the Department's schedule of documents is attached to these reasons for decision.)

 Decision under review

  1. The decision under review is the internal review decision of the Department on 2 June 2011 to refuse the applicant full access to the 31 documents.

 Irrelevant matter (s 22)

  1. Section 22(1) of the FOI Act relevantly provides:

    Access to edited copies with exempt or irrelevant matter deleted

    (1) This section applies if:

    (a) an agency or Minister decides:

    (i) to refuse to give access to an exempt document; or

    (ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and

    (b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:

    (i) access to the edited copy would be required to be given under section 11A (access to documents on request); and

    (ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request ...

    Section 22(2) requires an agency or a minister to prepare an edited copy and give an applicant access to it.

  2. Nine of the documents that are the subject of this IC review contain information about the other complaint. As the applicant's FOI request sought access only to documents concerning her own complaint against the supervisor, I consider the information that relates only to the other complaint to be irrelevant to the applicant's request. (If the applicant's FOI request had been framed so as to encompass information about the other complaint, if is highly likely that the documents containing this information would be exempt.)

 Findings

  1. Documents 1–3, 6, 21, 23, 25, 26 and 30 contain information relating to the other complaint which is irrelevant to the applicant's request.

 Certain operations of agencies exemption (s 47E)

    1. Section 47E of the FOI Act relevantly provides:

Public interest conditional exemptions — certain operations of agencies

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

...

  1. have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency; ...
  1. The Department referred to s 47E(c) in its reasons for deciding to refuse the applicant access in full to four of the documents she sought.
  2. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that, for s 47E to apply:

    An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect and the reasons behind the identification of those particulars should be articulated during the decision making process. Those particulars should also indicate whether the effect could reasonably be expected to occur.[12]

  3. As I said in Carver and Fair Work Ombudsman [2011] AICmr 5:

    An assertion that an APS employee has breached the APS Code of Conduct is a serious allegation. When undertaking a Code of Conduct investigation of one of its employees, an agency can be expected to create documents that include evidence about that employee's conduct taken from that employee, from other employees and (possibly) from people outside the agency. It is obviously beneficial for an agency's management and assessment of its personnel that the evidence that it collects in such investigations is as frank as possible. Anyone providing such evidence would expect that, subject to applicable natural justice principles, details of that evidence will not be widely disclosed. Disclosure of such evidence could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management or assessment of the agency's personnel.[13]

  4. The documents the subject of this IC review include transcripts of interview and correspondence with witnesses to the Code of Conduct investigation; the investigation report; and correspondence, including a notice of the outcome, with the supervisor who was under investigation. The Department exempted these documents in part or in full under the personal privacy exemption (s 47F).
  5. I have considered the application of s 47E to unedited copies of the 31 documents that the Department identified as being exempt under s 47F (personal privacy). I discuss the application of s 47F below.[14] Some of these documents are conditionally exempt under s 47E(c). In particular, the documents include statements made by the supervisor (which have not been disclosed to the applicant) and information that would reveal the identity of witnesses to the investigation. These parts are conditionally exempt under s 47E(c). I think that disclosure of this information could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations – by the Department or by other agencies. This would have a substantial adverse effect on the Department's capacity to manage and assess its personnel.
  6. However, the applicant's own complaint, statements and correspondence, and references in the documents to the name and gender of the supervisor, are not conditionally exempt under s 47E. The applicant has full knowledge of this information. Its disclosure in these circumstances could not reasonably be expected to affect the willingness of people to provide evidence to future investigations.
  7. The correspondence to the supervisor relating to the outcome of the investigation (the notice of intended sanction and final sanction) is also not conditionally exempt under s 47E. The disclosure of documents dealing only with the outcome of an investigation would not have a substantial or adverse effect on an agency's ability to conduct future investigations or on the willingness of people to provide evidence in relation to future investigations. On the contrary, to the extent that such a disclosure demonstrates that an investigation has been properly undertaken, that disclosure will improve general confidence in an agency's capacity to conduct future investigations.

 Findings

  1. The following documents, as numbered in the attached schedule, are conditionally exempt in full under s 47E(c):
    • document 6 (pages 1–5 of which are the subject of this IC review) and documents 21–26.

    The following documents, are conditionally exempt in part under s 47E(c) and, if exempt, edited copies could be provided to the applicant:

    • documents 3, 11–20 and 28–29.

    The following documents are not conditionally exempt under s 47E(c):

    • documents 1 and 2.

 Personal privacy exemption (s 47F)

  1. In its reasons for decision, the Department identified all 31 documents the subject of this IC review as being exempt in full or in part under the personal privacy exemption. The documents contain personal information about a number of people other than the applicant, including witnesses interviewed as part of the Code of Conduct investigation and the supervisor, against whom the complaint was made.
  2. Section 47F(1) of the FOI Act provides:

    Public interest conditional exemptions-personal privacy

    General rule

    1. A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
  3. Section 4 of the FOI Act provides that personal information means 'information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'.
  4. I have not considered the application of s 47F to the material in those documents that I have already found to be irrelevant to the applicant's request,[15] or conditionally exempt under s 47E.[16] I have considered the application of s 47F to the remaining material in the documents that are the subject of this IC review.
  5. An Australian Public Service Commission (APSC) circular provides guidance to agencies about what information should be given to complainants about the outcome of Code of Conduct investigations. The circular says:

    Complainants have a legitimate interest in knowing that alleged 'wrongs' have been addressed. Complainants should be given sufficient information to provide assurance that the agency:

    • has taken the allegation seriously
    • does not tolerate behaviour that is inconsistent with the APS Code of Conduct
    • has imposed an appropriate sanction where a breach has been found
    • has taken appropriate steps to ensure the problem will not recur.

    However, when considering what information to provide to complainants to ensure confidence in public administration, agencies need to balance:

    • individual employees' right to privacy, the protection of personal information about individual employees and the agencies' obligations in regard to this information under the Privacy Act 1988 ... ; and
    • the need to take reasonable steps to be transparent and accountable to other parties involved.[17]
  6. The APSC circular does not apply to the making of a decision under the FOI Act. However, the balancing of considerations that the circular describes is similar to the balancing of considerations that the FOI Act requires when deciding whether disclosure, in the circumstances of this IC review, would involve the unreasonable disclosure of personal information.
  7. Documents 1 and 2 are correspondence with the supervisor relating to the outcome of the investigation into his conduct (the notice of intended sanction and final sanction). Document 3 is the investigation report. All three documents contain information (including personal information) relating to the other complaint which is irrelevant to the applicant's request.[18] Document 3 is conditionally exempt in part under s 47E(c), because it contains information (including personal information) the disclosure of which could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations.[19]
  8. The remaining personal information in documents 1–3 relates to the outcome of the investigation. I do not consider it unreasonable to disclose this information to the applicant in these circumstances. Indeed, that disclosure may assure the applicant that the Department (in the words of the APSC circular) has taken her allegation seriously, does not tolerate behaviour that is inconsistent with the APS Code of Conduct, has imposed an appropriate sanction where a breach has been found, and has taken appropriate steps to ensure the problem will not recur. Documents 1–3 are not conditionally exempt under s 47F.
  9. Documents 7–10 are transcripts of the applicant's own interviews with the investigator and email correspondence with her confirming the accuracy of those transcripts. As the applicant has full knowledge of the content of these documents, including the personal information of other people, its disclosure to her is not unreasonable. These documents are not conditionally exempt under s 47F.
  10. Documents 31 and 34 contain information about staff in specified positions within the Department, including their position titles and responsibilities. Some of this information is personal information, but it was included in the documents because of the usual duties or responsibilities of the identified officers. It is highly likely that the applicant has full knowledge of the content of these documents. In any event, I do not consider it unreasonable to disclose this information to her. These documents are not conditionally exempt under s 47F.
  11. Document 32 is the applicant's Performance Development Scheme appraisal and ratings for 2008–09. The Department exempted the name of the applicant's supervisor from this document citing s 47F. The applicant has full knowledge of the content of this document, including the personal information of the supervisor (which was included in the document because of the supervisor's usual duties or responsibilities); its disclosure to her is not unreasonable. This document is not conditionally exempt under s 47F.
  12. Document 33 is a fax from the Department to the investigator containing a number of emails between Departmental officers about a project that the applicant's area of the Department was undertaking. The Department exempted the personal information of Departmental officers identified in those emails, including their names, email addresses and phone numbers. This personal information was included in the document because of the usual duties or responsibilities of the identified officers. It is highly likely that the applicant has full knowledge of the content of this document. In any event, I do not consider it unreasonable to disclose this information to her. This document is not conditionally exempt under s 47F.

 Findings

  1. Documents 1–3, 7–10 and 31–34, as numbered in the attached schedule, are not conditionally exempt under s 47F.

 The public interest test (s 11A(5))

  1. I have found that 20 of the 31 documents that are the subject of this IC review contain material that is conditionally exempt under s 47E(c) of the FOI Act.[20] Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed 'unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest'.
  2. As the Guidelines explain, '[t]he pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure'.[21]
  3. Of the factors favouring disclosure set out in s 11B(3), two are relevant to this IC review: promoting the objects of the Act and allowing a person (the applicant) access to her own personal information. But, as in Carver, the principal factor favouring disclosure in this IC review is the importance of transparency in investigations of the work-related conduct of public officials.[22]
  4. Against these factors must be balanced the factors against disclosure. The FOI Act does not specify any factors against disclosure, but the Guidelines include a non-exhaustive list of such factors.[23] Of those factors listed in the Guidelines, the ones relevant to this IC review are those that I have discussed above when considering the applicability of conditional exemptions. In relation to the certain operations of agencies exemption (s 47E) these are that disclosure:
    • could reasonably be expected to prejudice an agency's ability to obtain confidential information
    • could reasonably be expected to prejudice an agency's ability to obtain similar information in the future, and
    • could reasonably be expected to prejudice the management function of an agency.
  5. I think that all of these factors against disclosure should be weighted heavily in this case. In particular, disclosure would cause a significant harm if it prejudiced the Department's capacity to undertake future Code of Conduct investigations and reduce the willingness of witnesses to participate in those investigations.

 Findings

  1. Giving the applicant access to the 20 documents that I have found to be conditionally exempt under s 47E(c) would, on balance, be contrary to the public interest for the purposes of s 11A(5). Seven of those documents are exempt in full; 13 are exempt in part. However, edited copies of the 13 documents exempt in part could be provided to the applicant under s 22.

 Disclosure log

  1. The Department is required, by s 11C of the FOI Act, to publish on its website, to the public generally, information that has been released in response to each FOI access request, subject to some exceptions. This publication is known as a 'disclosure log'.[24]
  2. One of the exceptions to this requirement to publish is where the documents in question contain 'personal information about any person, if it would be unreasonable to publish the information' (s 11C(1)(a)). Several of the documents that the applicant has sought, and which I have decided are not exempt from disclosure, contain personal information of the applicant, of the supervisor, and of others.
  3. It is for the Department to decide whether these documents should be published on the disclosure log. The test that the Department has to apply (whether it would be unreasonable to publish the information on a website to the public generally) is different to the test that I have applied in this IC review (whether it would be unreasonable to disclose that information to the applicant).

 Providing information to Code of Conduct complainants

  1. The APSC circular, that I referred to above, also provides the following guidance to agencies:

    Complainants who raise issues about an APS employee's actions or behaviour, or the processes, actions or conduct of an agency, often receive only basic information from the agency about the outcome of the investigation into their complaint.

    Giving a complainant little or no information about the outcome of an investigation can create problems if an agency fails to assure the complainant that the issue has been dealt with properly. This lack of information may undermine confidence in public administration and lead to further claims, complaints or litigation (including requests for review, whistleblower reports and applications under the [FOI Act]).

    Concern over employees' privacy or the Privacy Act itself is often cited by agencies as the reason not to disclose any information about the handling of a complaint or the outcome of an investigation to a complainant. ...

    Agencies should exercise care that they do not overstate or misinterpret the effect of the Privacy Act when declining to provide information to complainants on the handling of a complaint or any remedial action taken as a result of the complaint.[25]

  2. The complainant (the applicant) in this IC review received little information from the Department about the outcome of the investigation of her complaint. The Department wrote to her advising her only that a breach of the APS Code of Conduct had been found, and that '[a]ppropriate action' had been taken.
  3. If the Department had provided the applicant with more information about the outcome of the investigation (not necessarily in written form), the result of her FOI request might have been different. The disclosure of the supervisor's personal information to the applicant might not have been reasonable if the Department had already provided the applicant with more detail about the outcome of the investigation, so some of the documents the subject of this IC review might have been exempt under s 47F.

 Decision

  1. In the column labelled 'IC review decision' in the attached schedule of documents, I have indicated for each document whether it:
    • is not exempt
      (the applicant should be given access to the document)
    • contains irrelevant information
      (a copy of the document should be provided to the applicant, edited so as not to disclose the specified irrelevant information)
    • is partly exempt
      (a copy of the document should be provided to the applicant, edited so as not to disclose the specified exempt information), or
    • is exempt.

Under s 55K of the FOI Act, I set aside the Department's decision of 2 June 2011 and decide, in substitution for that decision, as per the column labelled 'IC review decision' in the schedule.

James Popple
Acting Australian Information Commissioner

8 March 2013

Schedule of documents

Document number

Department's description

Department's decision

IC review decision

1

Formal correspondence

Exempt
s 47F

Irrelevant
s 22
Irrelevant information:

  • information regarding other complaint (including name of complainant)

2

Determination

Exempt
s 47F

Irrelevant
s 22
Irrelevant information:

  • information regarding other complaint (including name of complainant)

3

Investigation report

Exempt
s 47E(c)
s 47F

Irrelevant
s 22
Partly exempt

s 47E(c)
Irrelevant/exempt information:

  • statements of supervisor (s 47E(c))
  • names and statements of witnesses (s 47E(c))
  • information regarding other complaint (including name of complainant) (s 22)

6
(pages 1–5)

Notice of Investigation

Partly exempt
s 47F

Irrelevant
s 22
Exempt

s 47E(c)

7

Transcript of interview between [the investigator] and [the applicant] on 30/9/09 at 10:30 am

Partly exempt
s 47F

Not exempt

8

Agreement that transcript of 30/9/09 is accurate

Partly exempt
s 47F

Not exempt

9

Transcript of interview between [the investigator] and [the applicant] on 8/12/09

Irrelevant
s 22
Partly exempt

s 47F

Not exempt

10

Agreement that transcript of 8/12/09 is accurate

Partly exempt
s 47F

Not exempt

11

Transcript of interview between [the investigator] and [Departmental] employee on 24/11/09

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision, except for references to the name/gender of the supervisor

12

Forwarding [Departmental] employee's agreement that transcript of 24/11/09 is accurate

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision

13

Transcript of interview between [the investigator] and [Departmental] employee on 27/11/09 at 3:32 pm

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision, except for references to the name/gender of the supervisor and references to 'manager'
  • leave second last comment of interviewee on page 1 and first comment of interviewer on page 2 of interview as was edited by the Department, including all names etc

14

Agreement that transcript of 27/11/09 is accurate

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision

15

Transcript of interview between [the investigator] and [Departmental] employee on 7/12/09

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision, except for references to the name/gender of the supervisor

16

Agreement that transcript of 4/12/09 is accurate

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision, except for name of supervisor in subject line of email

17

Transcript of interview between [the investigator] and [Departmental] employee on 7/12/09

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision, except for references to the name/gender of the supervisor

18

Forwarding [Departmental] employee's agreement that transcript of 7/12/09 is accurate

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision

19

Transcript of interview between [the investigator] and witness on 30/11/09

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision, except for references to the name/gender of the supervisor

20

Forwarding witness' agreement that transcript of 30/11/09 is accurate

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision

21

Parts 1 and 2 of transcript of interview between [the investigator] and [Departmental] employee on 18/12/09

Exempt
s 45
s 47E(c)
s 47F

Irrelevant
s 22
Exempt

s 47E(c)

22

Agreement that transcript of 18/12/09 parts 1 and 2 is accurate

Exempt
s 47F

Exempt
s 47E(c)

23

Part 3 of transcript of interview between [the investigator] and [Departmental] employee on 18/12/09

Exempt
s 45
s 47E(c)
s 47F

Irrelevant
s 22
Exempt

s 47E(c)

24

Agreement that transcript of 18/12/09 part 3 is accurate

Exempt
s 47E(c)
s 47F

Exempt
s 47E(c)

25

Email with attached written statement against allegations

Exempt
s 45
s 47F

Irrelevant
s 22
Exempt

s 47E(c)

26

Email and attached written statement previously provided to Comcare

Exempt
s 47F

Irrelevant
s 22
Exempt

s 47E(c)

28

Email – subject private – regarding further thoughts following interview

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision

29

Email – subject 'June date'

Partly exempt
s 47F

Partly exempt
s 47E(c)

Exempt information:

  • as per Department's decision

30

Forwarding [named Departmental officer's] email – subject 'Information as requested' regarding PDS [Performance Development Scheme] information relating to [the applicant]

Irrelevant
s 22
Partly exempt
s 47F

Irrelevant

s 22

Irrelevant information:

  • as per Department's decision

31

List of staff in Regional Health Development Section from 1 July 2008

Partly exempt
s 47F

Not exempt

32

[The applicant's] PDS and ratings for 08/09 Fin Year

Partly exempt
s 47F

Not exempt

33

Fax regarding Documentation Request – Investigation

Partly exempt
s 47F

Not exempt

34

Organisational information regarding the department and in particular, OATSIH [Office for Aboriginal and Torres Strait Islander Health]

Partly exempt
s 47F

Not exempt

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700. 


 [1] The APS Code of Conduct is set out in s 13 of the Public Service Act 1999. The Code imposes obligations on APS employees (people engaged under the Act).

[2] See s 55A(1)(c). The supervisor has been consulted in relation to 10 of the 31 documents that are the subject of this IC review. Only an affected third party who made a submission in support of an exemption contention can apply for internal or IC review of an access grant decision: see Office of the Australian Information Commissioner (August 2012), Personal and business information – Third party review rights under the Freedom of Information Act 1982 (consultation paper), p. 3.

[3] Documents 4 and 5 as numbered in the Department's schedule of documents.

[4] Documents 3, 6–34.

[5] Documents 1 and 2.

[6] The supervisor was seeking internal review in relation to 10 documents that related to him and that the Department had decided to release to the applicant.

[7] Document 27.

[8] Document 6.

[9] Documents 1–3 and 21–26. The Department's original decision was to refuse access only to documents 1 and 2. This IC review was not 'undertaken' (see s 54Z of the FOI Act) until 26 August 2011 when the Office of the Australian Information Commissioner wrote to the Department advising that it had decided to review the Department's decisions of 25 March and 2 June 2011. If the IC review had been undertaken before the Department made the internal review decision, the Department would have been restricted in how it could vary its original decision. Because of s 55G, the Department would only have been able to vary its original decision to the extent that it gave the applicant access to a document in accordance with her original request.

[10] Documents 4, 5 and 27.

[11] I have examined unedited copies of those 31 documents. I think that only documents 1, 2 and 3 fell within the scope of the applicant's original request for reports 'from the investigation ... including any penalties and/or restrictions incurred as a result of [the] breach'. Nonetheless, given the subsequent submissions of the parties, and the scope of the applicant's application for IC review, it is appropriate to consider all 31 documents in this IC review.

[12] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [6.94].

[13] [2011] AICmr 5, [22]. See also 'Z' and Department of Defence [2013] AICmr 6, [14]–[15].

[14] See [23]–[35] below.

[15] Documents 1–3, 6, 21, 23, 25, 26 and 30.

[16] Documents 3, 6, 11–26 and 28–29.

[17] Australian Public Service Commission, Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, [2]–[3]: see www.apsc.gov.au/publications-and-media/circulars-and-advices/2008/circular-20083.

[18] See 13 above.

[19] Statements made by the supervisor and information that would reveal the identity of witnesses to the investigation: see 19 and 22 above.

[20] Documents 3, 6, 11–26 and 28–29.

[21]Guidelines, [6.12].

[22]Carver and Fair Work Ombudsman [2011] AICmr 5, [41].

[23]Guidelines, [6.29].

[24] See Guidelines, part 14.

[25] Australian Public Service Commission, Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, [22]–[25]: see www.apsc.gov.au/publications-and-media/circulars-and-advices/2008/circular-20083.